Steger v. Meehan

• Decision Date: 03 August 1933
• Docket Number: No. 31160.,31160.
• Citation: 63 S.W.2d 109
• Parties: STEGER v. MEEHAN et ux.
• Court: Missouri Supreme Court

63 S.W.2d 109

STEGER v. MEEHAN et ux.

No. 31160.

Supreme Court of Missouri, Division No. 1.

August 3, 1933.

Appeal from St. Louis Circuit Court; Wm. H. Killoren, Judge.

Action by Katherine Steger against Paul Meehan and wife. Judgment for plaintiff, and defendants appeal.

Affirmed.

Green, Henry & Remmers, of St. Louis, for appellants.

Jesse T. Friday, of St. Louis, for respondent.

HYDE, Commissioner.

This is an action by a widow for damages for the death of her husband, who was struck and killed by an automobile belonging to defendants. The only witnesses to the accident were the defendants and their son, who was driving their automobile, and a man who was driving ahead of them at the time. The case was submitted to the jury solely upon the humanitarian rule. The jury's verdict was for the plaintiff for $10,000, and from judgment entered thereon defendants have appealed.

Plaintiff's version of the accident, given by Thomas Watson, the driver of the car ahead of defendants' car, was that he was driving east on Natural Bridge Road in St. Louis on the south street car track; there being two car tracks in the center of the street. The street was paved with brick and was about 40 feet wide. It was about 9:30 in the evening and the street was dry. It was practically level near its intersection with Turner avenue. Before he reached Turner avenue, which was about 30 feet wide, Watson said he saw plaintiff's husband about 35 feet east of the east side of the intersection, in about the middle of the south street car track, walking directly south about 100 feet east (ahead) of his automobile. At that time, he did not see defendants' automobile. When he reached a point about 40 feet west of plaintiff's husband, who was then 2 feet south of the south rail of the south street car track still walking south, he observed defendants' automobile attempting to pass him on the right-hand side of his car; the front of defendants' car was then about even with the front door of his car. He was driving about 20 miles per hour and defendants' automobile was traveling about 25 miles per hour. Defendants' automobile continued to travel about that much faster than his, during the remaining distance (40 feet) between that point and where plaintiff's husband was walking in the street. When it reached that place the front end of both cars were about even. Watson swerved his car to the left to give defendants' automobile room to swerve away from plaintiff's husband, but defendants did not swerve it, slacken its speed, or sound any signal, and the right front part of their car struck plaintiff's husband when he was about 2 feet from the curb. Thereafter, defendants' automobile was brought to a stop 30 to 35 feet west of where it struck him. Plaintiff's husband died the next day from his injuries. There were no other automobiles nor pedestrians in the street anywhere in sight at the scene of the accident.

Defendants' testimony was that their car never attempted to pass the Watson car, but was traveling 3 or 4 feet behind and to the right of it at about the same rate of speed, about 25 miles per hour; that none of them saw plaintiff's husband until he stepped from in front of the Watson automobile not more than 15 feet in front of them; that their automobile was swerved immediately to the left and both brakes applied; but that the right front part of their car hit him before it could be stopped or swerved far enough to miss him. It was shown by expert testimony that defendants' automobile, a Chevrolet coach with four-wheel brakes, could be stopped within 20 feet when traveling at the rate of 25 miles per hour, under the circumstances and conditions then existing. Defendants' evidence was to the same effect and was also that their car was stopped within that distance. Defendants' evidence also showed that with their headlights they could see from 75 to 100 feet ahead.

Defendants' first assignment of error is that their demurrers to the evidence at the close of the whole case should have been sustained because a submissible case was not made under the humanitarian doctrine. Defendants in arguing this proposition assume that plaintiff's husband could not have been discovered until their automobile was within 40 feet of him and that there was not then time to do anything to prevent striking him. In determining this question, however, we must, instead of so assuming those facts, apply the familiar rule that upon demurrer to the evidence "the whole evidence, whether offered by plaintiff or defendants, must be searched and the plaintiff given the benefit of any and all facts and circumstances favorable to or tending to support her theory of the case and every reasonable inference deducible therefrom, while evidence on the part of and favorable to the defendants, which is contradicted, must be excluded." Gilliland v. Bondurant (Mo. Sup.) 59 S.W.(2d) 679, 683; Gray v. Columbia Terminals Co. (Mo. Sup.) 52 S.W.(2d) 809.

It is apparent that if the facts were as stated by Watson, a submissible case was made under the humanitarian rule. The jury might well believe that, by the exercise of the highest degree of care, the driver of defendants' automobile could have discovered plaintiff's husband in the street when at least 100 feet from the place where he was struck. The testimony that he was only two feet from the south curb (defendants' son said he was driving three feet from it), when he was hit by the right-hand side of their automobile, justifies the inference that a very slight swerve of appellants' automobile to the left would have made it possible to have passed safely by him. Under the evidence, as to the distance in which their automobile could have been stopped, the jury certainly had a right to infer that, by the exercise of the highest degree of car, the speed of the car could have been sufficiently slackened to have avoided the accident. Defendants cite Rollison v. Wabash R. Co., 252 Mo. 525, 160 S. W. 994, to the effect that negligence cannot be predicated on two seconds of time. We agree that under the circumstances of that case it could not be. However, it is possible to do things to avoid running over persons with automobiles, which cannot be done with railroad trains, such as swerving aside. Moreover, while a railroad engineer is only required to use ordinary care, the driver of an automobile upon public streets has the duty to exercise the highest degree of care at all times and places to prevent injury. Hart v. Weber (Mo. Sup.) 53 S.W. (2d) 914. The greatly increased speed and use of automobiles and their improved brakes and other appliances has greatly speeded up traffic on our streets and highways. These things and the greater duty resting upon their drivers have also speeded up the humanitarian doctrine as applied to them. If an automobile can be driven (at 25 miles per hour) 75 feet in two seconds, surely it can be swerved 3 or 4 feet to one side in that time to avoid striking a pedestrian 2 feet from the curb. If it can be brought to a complete stop in 20 feet, surely it can be slowed down enough in much less than that distance to allow a pedestrian, in such a position, to escape it. We hold that the trial court was right in overruling appellants' demurrers to plaintiff's evidence.

Defendants' second assignment of error is that plaintiff's instruction No. 1 was erroneous. This was plaintiff's main instruction submitting the case on negligence under the humanitarian rule. The parts applicable here, concerning the requirements under the humanitarian rule for finding a verdict for plaintiff, were as follows: "And if you further believe and find from the evidence that before said Carl Steger was struck by said automobile, if you find he was struck by said automobile, and while said Carl Steger was walking southwardly across said Natural Bridge Avenue, as aforesaid, if you so find, that he was in a position of imminent peril of being struck by said automobile and that defendants' said agent and servant saw, or by the exercise of the highest degree of care could have seen, said Carl Steger walking southwardly across Natural Bridge Avenue, as aforesaid, and in a position of imminent peril of being struck by said automobile, if you find that said Carl Steger was in a position of imminent peril of being struck by said automobile, and that defendants' said agent and servant, in time thereafter, by the exercise of the highest degree of care on his part, and with the means at hand and with safety to himself and the other persons in said automobile, could have stopped, slackened the speed of or turned said automobile, or could have given said Carl Steger a timely warning of the approach thereof, and thus and thereby could have prevented said automobile striking said Carl Steger; and that defendants' said agent and servant failed to do so, and in so failing, if you so find, that defendants' said agent and servant was negligent, and that said automobile struck and injured the said Carl Steger, as a direct result of such negligence, if you so find, and that as a direct result of the injuries, if any, thus sustained by said Carl Steger, he died on the 12th day of May, 1929; * * * then the Court instructs you that, even though you may further find from the evidence that the said Carl Steger was himself negligent in being in such position of imminent peril, if you so find, nevertheless, your verdict must be in favor of the plaintiff and against the defendants."

Concerning this matter the following instruction was also given at the request of defendants: "The Court instructs the jury that if you find and believe from all the evidence in this case that the defendants' automobile was at all times being operated by the defendants in the manner that a very careful and prudent person would operate same, and that the defendants were at all times exercising the highest degree of care in the operation of said automobile and that while said...